Friday, January 19, 2018

There have been articles in our trusty local newspaper over the last few months (such as this one) referring to lawsuits being "dismissed" and each party paying its own court costs. In the case of this specific dispute, the lawsuit was ended by the filing of a Consent Order.

There are two common ways to end a lawsuit by agreement. One of them is to file a court order (called a Consent Order or, sometimes, a Consent Dismissal Order) which typically includes terms to the effect that the lawsuit is dismissed as if it had been tried on the merits, and that each party agrees to pay its own court costs. However, that does not mean that no money changed hands between the parties "behind the scenes," including either or both of damages and court costs. There may be many other terms in the settlement or conclusion of a lawsuit, such as one or more parties signing a Release or that they agree to keep the settlement or conclusion confidential.

A filed Consent Order can be viewed by any member of the public (unless the court file is sealed for privacy reasons, such as in family law cases) simply by attending Court Registry
during normal business hours and asking to review the court file, or by searching the court file online
through Court Services Online (in either case, upon payment of a modest
search fee -- the government always gets its slice). By drafting such a Consent Order in terms similar to those used in this specific case, it allows the parties to end the lawsuit without revealing the details of that settlement or conclusion.

When reading similar future news articles, the only conclusion to be drawn safely is that the lawsuit is over. What happened behind the scenes to get to that point remains unknown.

Friday, November 10, 2017

The rules regulating contingency fee agreements (percentage agreements) in Ontario have been in the limelight recently due to concerns raised with respect to the conduct of some lawyers. For example, see this article in the Toronto Star from January, 2017:

In British Columbia, we have had for years the kind of rules now proposed for Ontario contingency fee agreements, under Part 8 of the Legal Profession Act (British Columbia) (the "Act"). Among other things, pursuant to s. 67(2) of the Act, lawyers may not "double dip" (take a percentage of the client's settlement or award and take the client's "court costs" amount). In addition, pursuant to s. 69(4) of the Act, a lawyer's bill must contain a detailed statement of the lawyer's disbursements (the expenses incurred by the lawyer on behalf of the client).

There are many other rules in Part 8 of the Act which are intended to regulate contingency fee agreements and other aspects of lawyers' bills. The full text of Part 8 is here:

Monday, November 06, 2017

Over the last few weeks I've had a technical glitch with the Contact Submission Form on my Contact page. It seems that several messages sent to me using the form have not gotten through. I'm sorry for this difficulty.

It appears that the problem is fixed now. If you sent me a message but did not receive a reply, please don't hesitate to re-send it through the Contact page, or simply call me:

2. 68 per cent of civil mediations resolved all issues between the parties, and a further 25 per cent of civil mediations did not resolve all issues but helped the parties make progress towards a resolution. In other words, in 93 per cent of civil mediations, the mediation resulted in a complete or a partial settlement of the dispute.

3. The average total mediation fees for a civil mediation were $1,566. The average legal fees for a litigation dispute up to and including a two-day civil trial were $21,452 per party, or $42,904 for two parties. In other words, if a civil mediation is conducted before lawyers are retained, the cost of the mediation is a small fraction of the costs of litigation.

4. Cases which included a mediation resolved on average about five months sooner than those which did not.

5. 93 per cent of participants in civil mediations had an average-or-higher satisfaction rate with the process.

Mediation is not the perfect answer in every case, but the numbers show that it's usually a cost-effective way to conclude a dispute successfully.

Wednesday, November 26, 2014

In a decision released earlier this month, the Supreme Court of Canada has imposed a new duty of good faith in the performance of contractual obligations.

The decision is Bhasin v. Hrynew, 2014 SCC 71, and the link to the full decision is here:

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14438/index.do

The court summarized the new requirement as follows:

"It is appropriate to recognize a new common law duty that applies to all
contracts as a manifestation of the general organizing principle of good
faith: a duty of honest performance, which requires the parties to be honest
with each other in relation to the performance of their contractual obligations.

Under this new general duty of honesty in contractual performance, parties
must not lie or otherwise knowingly mislead each other about matters directly
linked to the performance of the contract. This does not impose a duty of
loyalty or of disclosure or require a party to forego advantages flowing from
the contract; it is a simple requirement not to lie or mislead the other party
about one’s contractual performance. Recognizing a duty of honest
performance flowing directly from the common law organizing principle of good
faith is a modest, incremental step." [Emphasis added - AK.]

To put this into context, the usual rule in contract law used to be that the parties did not owe each other any duty of good faith when it comes to negotiating the terms of contracts (formation), nor in performing their obligations under the contract (performance). That certainly didn't (and still doesn’t) mean that a contracting party was free to lie to, mislead, blackmail, or cheat the other contracting party, but equally a contracting party was entitled (and expected) to act in its own best interests first and foremost. Thus, until this decision, generally there was no higher or elevated duty of good faith owed by contracting parties to each other with respect to either the formation or the performance of “regular” contracts. (There are certain types of contracts which require utmost good faith by the parties, with respect to both formation and performance. One example of a contract of utmost good faith is a life insurance contract.)

This recent Supreme Court of Canada decision now means that the parties to a “regular” contract owe each other a duty of honest performance.

This decision does not change the existing obligations owed by contracting parties to each other with respect to the formation of contracts. There are plenty of legal rules which protect contracting parties in situations involving duress, undue influence, and misrepresentation, among other things. But, as yet, there is no general duty of good faith owed by contracting parties to each other with respect to the formation of contracts.

In the world of contract law, this is a Big Deal. This new rule gives the court another way to protect an innocent contract party who has been lied to or cheated by the other contracting party with respect to that other party's performance of the contract.

Thursday, November 13, 2014

In situations where the parties to a dispute cannot meet face-to-face at a mediation session, Online Mediation can be the solution.

For example, where the parties and the mediator live in distant cities or towns, the travel time and expenses for everyone to gather in the same place for a face-to-face mediation might be too significant in light of the issues or amounts of money in dispute. Or one or more of the parties might be unable to travel away from their home town for, say, medical reasons or due to work or other commitments. For people caught in this bind, Online Mediation often can help.

To participate in an Online Mediation, the parties only need the following:

- a computer or mobile device with video and sound capabilities (a desktop or laptop computer with a webcam, or a tablet/smartphone, usually do the trick);

- a high-speed Internet connection (for a tablet or smartphone, 3G is acceptable but makes for blocky video; 4G/LTE is better; and high-speed wifi is best); and

- a private room at their location.

The mediator schedules and conducts the online mediation through an online videoconference service provider (such as WebEx or Zoom.us, among others). These videoconference platforms also allow the mediator to post documents, photos, and other materials for everyone to review and discuss during the mediation. The technology is easy to use, even for someone who is not completely comfortable with computers or other electronic devices.

In many disputes, a face-to-face mediation with everyone in the same room is the better way to go. But in situations where an in-person mediation is not an option, then Online Mediation can be a solution.

I have completed the Facilitation Skills for Online Mediation course offered through Royal Roads University, and I now offer Online Mediation as part of my mediation practice.